The European Union's Non-Members

Independence under hegemony?

Erik Oddvar Eriksen, John Erik Fossum, Erik Oddvar Eriksen, John Erik Fossum

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317613930
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Política

The EU is a supranational organization, whose reach and influence extends well beyond its member states, especially to the many states that have signed various forms of association agreement with it.

This book asks whether qualifying states who have eschewed EU membership experience negative effects on their legal and political self-governing abilities, or whether they manage their independence with few such effects. It explores the idea that the closer the affiliation a non-member state has with the EU, the more susceptible to hegemony the relationship appears to be. In addition, the book provides an overview of the total range of agreements the EU has with non-member states.

This text will be of key interest to scholars and students of in EU/European studies, Scandinavian studies, European and comparative politics, international relations, and democratization studies.

1 Introduction Asymmetry and the problem of dominance

Erik O. Eriksen and John Erik Fossum

DOI: 10.4324/9781315751030-1

The European Union’s motto is ‘united in diversity’, which has a deep historical resonance. Europe throughout the centuries has seen a constant tension between unity and diversity, between uniformity and differentiation. The post-war emergence of the European Union gives a distinct twist to this story. This process of integration must navigate and (re)direct the underlying centripetal and centrifugal forces; it cannot on its own completely reshape them. The trend has long been cast as one towards further integration, which is inevitable and the telos of Europe. That story has tended to downplay the important interplay between integration and differentiation that marks contemporary Europe.

The European Union (EU) has slowly grown from a geographically delimited Western European ‘club’ of six members based on a rather narrow remit of action to an almost continent-wide union of 28 member states whose realm of action is wide-encompassing, indeed. Membership in the EU is voluntary, but states that are interested in becoming members must comply with a set of entrance requirements. Any member state may also choose to leave the Union, and there are explicit provisions in place to regulate how exit is to take place.¹ But most European countries want to be members and no state has as yet left the Union.

A general assumption is that the EU is an international organisation, viz., an organisation made up of states whose main purpose is to serve the interests and concerns of the member states. Membership is voluntary as is the relinquishment of sovereignty. So the EU may be seen as belonging in the category of international organisations. In today’s world that state-centric view is increasingly questioned as international organisations take on and exercise functions that exceed well beyond this orthodox view. The European Union is the most explicit site in which this argument is contested. Formally speaking, the EU is an international organisation because the states are the masters of the treaties, but whether the EU at all should be placed in the (extended) category of international organisation is hotly debated. Simply put, at issue is whether the EU is a means of consolidating and aiding the existing system of states, or whether the EU epitomises a broader process of transformation, where the European system of states is profoundly transformed under the weight of European integration.

Today’s EU is clearly more than what we generally associate with an international organisation. Many depict it as a transnational organisation in order to distance it from both an international organisation and a state. The EU is a system of constitutionally regulated binding interstate cooperation where states and citizens co-decide issues of common concern. Member states pool and share sovereignty in a set of common institutions. A distinguishing and distinctive feature is that EU law enjoys direct effect and supremacy in those areas where the EU has been granted competence from the member states.

The exceptional precepts of EU law pertaining to supremacy and direct effect are but some of the aspects of the EU that serve to underline that the Union has strong effects on the member states. These effects are shown in the ability to pursue a steady increase in EU membership, a process that is coupled with an ever-deeper EU penetration into the affairs of the member states. This penetration does not stop at the EU’s boundaries and is also found – with depth depending on the form of association – in the many arrangements that the EU has formed with non-members. These association arrangements effectively extend EU norms and regulations far beyond the EU’s boundaries. The issue that concerns this book is whether, to what extent and how the EU affects (affiliated) non-member states across Europe (and beyond).

More specifically, what happens to states that are close to the gravitational centre but are not members of the EU? With proximity to the gravitational centre we refer to the extent to which EU norms and rules effectively apply on a non-member’s territory as well, despite it formally not being a member of the EU. The closer a non-member state is to the gravitational centre, the more encompassing – in terms of breadth and depth – its incorporation in the EU is.

There are two main categories of affiliated non-member states: (a) those that qualify for membership but have either declined membership or failed to apply for it and (b) those that do not qualify but seek as close a relationship to the EU as possible (preferably through becoming member states). Do such non-member states experience negative effects on their national systems of democratic governing from their affiliations with the EU, are they able to sustain their independence with few such effects or do effects vary with form of affiliation?

The main focus of this book is on the former group of states that qualify for EU membership, but have not taken it up and have instead entered into binding cooperation with the EU through different forms of agreements or through a distinct category of ‘associated non-membership’. Within this group of states there are two main types of affiliation: (a) the multilateral, or two-pillar, system that ties the states in the European Economic Area (EEA)² to the EU (Norway, Iceland and Lichtenstein) and (b) the system of bilateral sectorial agreements that Switzerland has established with the EU.³

The assumption is that the closer the affiliation a non-member state has to the EU, the more susceptible to hegemony the relationship will be. The book’s title, The European Union’s non-members: Independence under hegemony?, was chosen precisely to underline what is at stake here. To what extent is that the case? Is it something that marks a state’s EU relations whether these are regulated through a multilateral agreement such as the EEA (here discussed in relation to the cases of Iceland and Norway) or through a set of sectorial bilateral agreements (with Switzerland as the sole case)?

A danger of hegemonic dominance

The basic problem of the relationship between the EU and its associated members is that of asymmetry and arbitrary power, viz., dominance, which is rule without justification. Dominance occurs when the citizens are subjected to others’ will; to arbitrary power. Such rule is undemocratic because it does not appropriately track the interests, views or wills of the citizens (Richardson 2002). Dominance is illicit because of the dominators’ capacity to interfere in zones of freedom (Pettit 1999). It is thus referred to as a kind of unfreedom that people experience when they are in the power of others, a form of suppression that can in principle be eliminated by those who have installed it. It is a kind of unfreedom that carries ‘the whiff of illicitness’ (Shapiro 2012: 308). Democratic forms of rule are antithetic to dominance as they put the citizens on an equal footing and assign the citizens the rights to enforce their will, also against the will of the power holders. Even if it is easy to associate domination with hierarchy, it is, clearly, not synonymous with hierarchy.⁴ As we discuss in Chapter 13, hierarchies amount to dominance when those affected are excluded from participating in decision-making. Rather absence of hierarchy can be a source of dominance, as unchecked power then likely prevails. In such settings decisions are typically made in opaque and unpredictable ways; there are no proper procedures to challenge and there is no explicit authority to hold to account. Dominance may therefore occur in principally different institutional configurations that range from anarchy to hierarchy. People are more vulnerable to domination in settings where their basic interests are seriously affected.

In international affairs the dominator is a hegemon – a hegemonic state – that wields power over subordinate states. The EU may take the form of a hegemon that autocratically rules the associated states because of the way its affairs with the associated non-members are arranged. The EU is not in itself a hegemon, but the way the relationship is organised pits it over and against the associated states. The EU makes laws – its rules – not via the threat of might or by direct military force but by the manner in which it makes the associated members receivers not makers of the law. The countries have to adopt the better part of the EU’s aquis communitaire and the ongoing legislation in order to have access to the internal market or to the Schengen agreement. But because the arrangement is voluntary, and the EU wants the associated countries to be members, it is not a hegemonic relationship by intent. Rather, the EU has taken the shape and function of a hegemon unintendedly. It is hegemony created by complex interdependence and the European integration process.

Hegemony is undemocratic, and dominance is ‘unconstitutional’. Therefore, the book’s focus is on the constitutional-democratic implications of the changing nature of state sovereignty in contemporary Europe. The emphasis is on clarifying what these changes entail for democratic self-rule in EU-affiliated non-member states. This examination is important for at least four reasons.

First is that it provides a comprehensive assessment of the implications for the states under consideration, including discerning similarities and differences between them. Is it so that different forms of formal association have different effects?

Second, when viewed from the perspective of the EU these forms of non-membership affiliation are cases of horizontal differentiation (Leuffen et al. 2013). In that sense the book sheds added light on the constitutional-democratic implications of differentiated integration, paying particular heed to the effects this has on the states rather than the institutions at the EU level, which is typically the focus in studies of differentiated integration.

Third is that the book pays specific attention to EU member states that seek to renegotiate their status with the EU (such as the UK). In addition to paying explicit attention to the UK debate, two additional points about this book’s relevance to that debate need to be mentioned. One is that a member state that seeks to renegotiate its relationship to the EU would still normally belong to the category of states that qualify for membership but for various reasons does not want to be a full member. In that sense it will belong in the same category of states as the ones that form the core of this book. The other point is that the investigation that is undertaken in this book covers the entire range of ways in which states that qualify for EU membership have organised their relations with the EU. These association forms will very likely figure in subsequent discussions about an exited state’s relations with the EU. How easily transferable the findings will be is of course a matter of conjecture. The UK is a major European state and a global player, whereas this book focuses on small states. The analysis provided here does nevertheless give us some sense of the wiggle room for states that seek close association without EU membership. That ties up with the broader issue of how firmly the EU holds on to legal unity and uniformity across its policy areas versus how accepting it is of opt-outs, special arrangements and differentiation in general.

Fourth, and finally, the main theoretical aim of the book is to analyse the changing conditions for state sovereignty and its implications for constitutional democracy in today’s Europe. Can individual states within the EU’s remit retain their sovereignty and democracy, or is EU membership the only way to regain some control over the agenda?

In the following section we provide a brief overview of the basic tenets of modern constitutionalism – not only why there is a promise of democratic self-rule but also why there is disagreement concerning what it takes to realise it. Thereafter, we spell out in further detail the nature of the European challenge, with particular emphasis on how it affects the core tenets of democratic constitutionalism. Based on the examinations in these two sections we identify a set of evaluation criteria – core components of constitutional democracy – that will be of direct relevance to the assessment of the cases. In the subsequent section, we provide a brief overview of the two main forms of affiliation in order to clarify the nature and density of these – how binding and committing they are. The final section outlines the contents of the book.

Democratic constitutionalism

It is a widely held assumption that in the modern constitutional democratic state there is congruence between state and popular sovereignty in the sense that the people governs itself through the institutions of the state and that those self-same institutions ensure the continuity and integrity of the democratic people. The core components of this by now dominant constitutional doctrine or even constitutional orthodoxy are basic rights that ensure citizens’ autonomy, a division of powers (legislative, executive and judiciary) and popular sovereignty. Constitutional orthodoxy is based on the notion of the constitution as constitutive of the national community. Constitutions define nation states and nation states give rise to and sustain constitutions. Democracy is equated with the rule of a given – nationally defined – people or democratic demos.

This notion is challenged in a world marked by increased mutual interdependence and the development of a comprehensive body of international law. Institutional arrangements such as the Council of Europe (which spawned the European Convention on Human Rights and the European Court of Human Rights) and the EU – both of which operate beyond the territorially delimited national community exercise political influence with constitutional implications. They – the EU in particular – constrain and condition the domestic exercise of law and they curtail state sovereignty. Today it is widely held that a state is truly sovereign only if it upholds human rights. Accordingly, many argue that constitutional orthodoxy is at a historical crossroads, or might even be in the process of being undermined. European integration and globalisation more generally, sceptics contend, mutually reinforce each other so as to undermine state sovereignty and democratic self-governing.

From a national perspective it appears that the problem of increased mutual interdependence can be avoided only if a state avoids being bound by the European integration process. If that is not possible, the second best option is to enter into only those forms of binding collaboration that do not have negative constitutional implications. Those are the considerations that motivate the forms of non-membership association that such states as Iceland, Norway and Switzerland (and principalities such as Liechtenstein) have chosen to regulate their relations with the EU.

These association arrangements, however, also engender problems and challenges. From an interest-based perspective, going solo becomes deer when others choose cooperation and integration. Going alone easily becomes a suboptimal strategy when it comes to handling mutual interdependence. There are consequences related to being seen as free riding on others’ endeavours to solve collective action problems. There is an element of moral hazard – the act of taking a risk when other people stand to pay any damage – which may affect the standing and perception of affiliated non-members and that may be detrimental to solving their problems in the long run. What is also important to note is that a nation state approach is not necessarily in synch with democratic constitutionalism itself. The term for constitution in...

Table of contents

• Cover Page
• Half Title Page
• Series Page
• Title Page
• Copyright Page
• Contents
• Tables
• Notes on Contributors
• Acknowledgements
• Preface
• 1 Introduction Asymmetry and the problem of dominance
• I Forms of association without membership
• II Welcomed, inside, but still unwilling Two EEA Countries Assessed
• III Sovereignty under hegemony
• Index